Dos, Don’ts, Tips, and Tricks in Employment Law

As originally published in the Goering Center for Family & Private Business supplement in the November 7th issue of the Cincinnati Business Courier.

So, your small business is not so small anymore and you are looking to hire some employees to help carry the load and to continue the growth. While this is certainly a great position to be in, there are a number of things that any business owner should know when hiring, managing, and firing employees.

Let’s start with hiring. If you have a written application, you should ensure that it does not contain any questions that might open the door to claims of discrimination. For example, an application should not ask whether the applicant has any physical or mental impairment that might affect the applicant’s ability to do the job. This could lead to a claim of disability discrimination. Applications also should not ask the applicant’s date of birth, because that could give rise to an inference that the employer discriminates based upon age.

Many employers want to conduct background checks on job candidates. This is entirely legal, but there are a few hoops and cautions. If you are paying a third party company to conduct the background check, you have to comply with the requirements of the Fair Credit Reporting Act (“FCRA”). Before you can request a background check, the FCRA requires that you provide the applicant with written notice that a background check will be conducted and obtain their written consent. If the background check reveals negative information that will disqualify the candidate, you must then provide the applicant with notice in advance of communicating the decision not to hire, along with a copy of the background report that contains the negative information.

If the background check reveals a criminal conviction, you should not automatically disqualify the candidate. The Equal Employment Opportunity Commission (“EEOC”) has taken the position that denial of a job based solely on certain types of criminal convictions can be discriminatory. If an applicant has a criminal past, you should carefully evaluate whether the conviction impacts the prospective employee’s ability to do the job. Factors such as the nature of the conviction, when it occurred, and the duties of the position should all be considered. You certainly do not have to hire a person with a conviction for theft to work as a bank teller, but you may want to consider hiring someone with a minor drug offense many years ago to work as an office assistant or factory worker.

Once you have hired your ideal employees, you should establish the rules, policies, and standards that will govern their employment. The best way to provide those rules is in the form of an employee handbook. Avoid “form” handbooks found on the internet or purchased through an outside service. They will not be tailored to your business and can cause many more problems than they solve. The handbook should cover basic topics such as attendance expectations, illness or medical leave policies, performance reviews, and possible grounds for disciplinary action. You should review the handbook with each new employee and have them sign an acknowledgement that they have received it and understand its contents.

One of the most important things that should be included in the handbook is a policy against discrimination and harassment of any kind. The policy should give a description of the types of behavior that are prohibited and provide some examples. The policy should also set forth a clear procedure for employees to report any conduct that they believe is harassing or discriminatory. It should identify multiple individuals who can receive such complaints to ensure that employees are comfortable and willing to report inappropriate behavior.

All complaints of harassment or discrimination should be taken seriously, even if you strongly suspect that they are exaggerated or fabricated. You should conduct an investigation, including speaking with the employee who made the report, interviewing any witnesses to the alleged misconduct, and reviewing any e-mails or other documents that may prove or disprove the claims. When the investigation is concluded, inform the complaining employee of the results and explain that they will not be retaliated against in any way for coming forward. If the investigation reveals that inappropriate behavior took place, appropriate discipline should be imposed on the offending employee(s). The more serious the misconduct, the more serious the discipline, including possible termination.

Speaking of termination, we have all heard the phrase “employment at-will.” This means that an employer can fire an employee for any reason or no reason at all. Whether employment is “at-will” is determined by state law. Ohio is an “at-will” state. While at-will employment is the general rule, there are many legal exceptions that tend to swallow that rule. For example, employers cannot terminate employees for discriminatory reasons, for taking medical leave under certain circumstances, for reporting a work-related injury, or for consulting an attorney. Before making the decision to terminate an employee, you should investigate and have a full understanding of the facts and issues leading up to the potential termination. Doing so will help you ensure that there are no inappropriate motives at play and provide you with the evidence you may need to defend your company if the terminated employee should later cry foul.

Unfortunately for burgeoning businesses, there are many laws that regulate (and complicate) the employment relationship. When in doubt, consult an experienced employment attorney. An ounce of legal prevention can be worth a pound of legal cure.

About the Author

Andy Kaake is a partner in the firm’s Labor and Employment practice group. Through his years of experience representing employers, he has become well versed in all aspects of employment law, including discrimination, harassment, medical leave, disability accommodation, drafting of handbooks and workplace policies, record-keeping, workplace investigations, and employee discipline